Strickland v. the Univ. of North Carolina At Wilmington

712 S.E.2d 888

270 Ed. Law Rep. 332

Donald Ray STRICKLAND, Administrator of the Estate of Peyton Brooks Strickland, Plaintiff,

v.The UNIVERSITY OF NORTH CAROLINA AT WILMINGTON and The University of North Carolina at Wilmington Police Department, Defendants.

No. COA10–1589.

Court of Appeals of North Carolina.

July 19, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendants from order entered 11 October 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 June 2011.

Comerford & Britt, L.L.P., Winston–Salem, by John Kenneth Moser and W. Thompson Comerford, Jr., for Plaintiff.

Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar, for Defendants.

STEPHENS, Judge.

On 1 December 2006, Peyton Brooks Strickland (“Strickland”) was killed in his residence by a member of the New Hanover County Emergency Response Team (the “ERT”). The ERT was serving a warrant for Strickland's arrest when a member of the ERT mistook the noise of a battering ram hitting the door of Strickland's residence for the sound of gunfire and discharged his weapon through Strickland's front door, mortally wounding Strickland.

The ERT had been deployed to serve Strickland's arrest warrant by the New Hanover County Sheriff's Department (“Sheriff's Department”) after the Sheriff's Department received a request from the University of North Carolina at Wilmington (“UNC–W”) police department for assistance in serving the warrant. The UNC–W police department had been investigating Strickland as a suspect in connection with a 17 November 2006 assault and theft on the UNC–W campus. Based on their investigations of the crime, of Strickland, and of others suspected to be involved in the crime, the UNC–W police department concluded that service of Strickland's arrest warrant was a potentially dangerous matter that necessitated Sheriff's Department assistance.

Following Strickland's death, on 31 October 2008, Plaintiff Donald Ray Strickland (“Plaintiff”), Strickland's father and the administrator of Strickland's estate, filed with the North Carolina Industrial Commission an action under the North Carolina Tort Claims Act, asserting a claim for wrongful death against UNC–W and the UNC–W police department (“Defendants”).¹ In his complaint, Plaintiff alleged that UNC–W police department officers negligently provided false, misleading, and irrelevant information to Sheriff's Department officers and ERT members in the process of securing ERT and Sheriff's Department assistance in serving Strickland's arrest warrant. Plaintiff further alleged that the provision of this false, misleading, and/or irrelevant information—including the allegedly false facts that Strickland was known to be armed and dangerous, that Strickland had been engaged in gang activity, and that Strickland had been involved in two previous assaults—proximately caused Strickland's death by leading ERT members to believe that they were entering into what the ERT member who shot Strickland described as a “severely dangerous environment including heavily armed suspects with histories of intentional physical violence causing injuries to persons.”

On 5 February 2010, Defendants filed a motion for summary judgment, asserting that Plaintiff's claim is barred by the public duty doctrine. The motion was heard on 19 February 2010 by Deputy Commissioner George T. Glenn II, who denied Defendants' motion in a 26 February 2010 order. Defendants appealed the order to the Full Commission, which affirmed the denial of summary judgment and remanded the case for a full evidentiary hearing. On 19 October 2010, Defendants appealed the Full Commission's order to this Court.²

The sole issue on this appeal is whether the public duty doctrine applies in this case to bar Plaintiff's claim. We conclude that it does not.

“The public duty doctrine is a[ ] rule of common law negligence that may limit tort liability, even when the State has waived sovereign immunity.” Myers v. McGrady, 360 N.C. 460, 465, 628 S.E.2d 761, 766 (2006). “The rule provides that when a governmental entity owes a duty to the general public ... individual plaintiffs may not enforce the duty in tort.” Id. at 465–66, 628 S.E.2d at 766. This doctrine has often been described, simply and oxymoronically, as “duty to all, duty to none.” Frank Swindell, Note, Municipal Liability for Negligent Inspections in Sinning v. Clark—A “Hollow” Victory for the Public Duty Doctrine, 18 Campbell L.Rev. 241, 247–49 (1996) (quoted in Multiple Claimants v. N.C. Dept. of Health and Human Servs., Div. of Facility Servs., Jails & Detention Servs., 176 N.C.App. 278, 282–83, 626 S.E.2d 666, 669 (2006), modified and aff'd, 361 N.C. 372, 646 S.E.2d 356 (2007)). Despite the presumable simplicity of a doctrine susceptible to such succinct encapsulation, application of the public duty doctrine in the North Carolina courts, as well as in other jurisdictions, has become a particularly prickly issue. Cf. Thompson v. Waters, 351 N.C. 462, 464, 526 S.E.2d 650, 651–52 (2000) (noting that “[s]ome courts have criticized the [public duty] doctrine as speculative and the cause of legal confusion, tortured analyses, and inequitable results in practice.” (citation and internal quotation marks omitted)). As such, we precede our discussion of the doctrine's application to this case with a brief discussion of the doctrine's history in this jurisdiction.

The classic example of the public duty doctrine's applicability—and, indeed, the fact pattern of the case in which our Supreme Court first recognized the validity of the doctrine—involves a negligence claim alleging a law enforcement agency's failure to protect a person from a third party's criminal act. See Braswell v. Braswell, 330 N.C. 363, 370, 410 S.E.2d 897, 901 (1991) (recognizing the public duty doctrine and applying it to a claim against a sheriff for negligent failure to protect a murder victim from her murderer). In such a case, it is alleged, albeit unsuccessfully, that the law enforcement officer breached his duty to protect the victim and that that breach, or failure to protect, caused the victim's death. As there is no general “duty to protect” imposed on individual actors, cf. Klassette v. Mecklenburg Cty. Area Mental Health, 88 N.C.App. 495, 499, 364 S.E.2d 179, 182 (1988) (noting that “there exists in this state no general duty to aid individuals in distress”), the law enforcement officer's tort duty to protect allegedly arises from his (or, more accurately, his municipal employer's) overarching duty to furnish police protection to the public in general. See Coleman v. Cooper, 89 N.C.App. 188, 193, 366 S.E.2d 2, 6 (in reviewing a claim against a law enforcement agency for failure to protect, examining the “duty, if any, owed by the city, through its police department”) (cited in Braswell, 330 N.C. at 370, 410 S.E.2d at 901), disc. review denied, 322 N.C. 834, 371 S.E.2d 275 (1988), disapproved in part by Hunt v. N.C. Dept. of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998). However, the public duty doctrine provides that because a municipality and its agents furnishing police protection “act for the benefit of the public” and not for a specific individual, the duty to provide police protection is to the general public rather than to a specific individual and, therefore, “there is no liability for the failure to furnish police protection to specific individuals.” Braswell, 330 N.C. at 370, 410 S.E.2d at 901 (citing Coleman, 89 N.C.App. at 193, 366 S.E.2d at 6). Stated differently, while the law enforcement agency owes a “duty to protect” to the public at large, individual members of the public as plaintiffs generally may not enforce that duty in tort. Myers, 360 N.C. at 465–66, 628 S.E.2d at 766. This limitation on a municipality's liability is subject to two exceptions:

(1) where there is a special relationship between the injured party and the police, for example, a state's witness or informant who has aided law enforcement officers; and (2) when a municipality, through its police officers, creates a special duty by promising protection to an individual, the protection is not forthcoming, and the individual's reliance on the promise of protection is causally related to the injury suffered.

Braswell, 330 N.C. at 371, 410 S.E.2d at 902 (internal quotation marks and citation omitted).

The justification for preventing an individual member of the public from enforcing the duty owed to the public as a whole, as stated by our Supreme Court in the police-protection context, is as follows:

The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources ... should be allocated and without predictable limits.

Braswell, 330 N.C. at 371, 410 S.E.2d at 901–02 (quoting Riss v. City of New York, 22 N.Y.2d 579, 581–82, 240 N.E.2d 860, 860–61, 293 N.Y.S.2d 897, 898 (1968)). Our Supreme Court in Braswell also “refuse[d] to judicially impose an overwhelming burden of liability for failure to prevent every criminal act” on law enforcement, again recognizing “the limited resources of law enforcement.” Id. at 370–71, 410 S.E.2d at 901.

Applying this same reasoning, our Courts have broadened this rule limiting a law enforcement agency's liability for failure to protect to also limit (1) a state inspection agency's liability for allegedly negligent inspections or allegedly negligent failure to inspect, Stone v. N.C. Dept. of Labor, 347 N.C. 473, 495 S.E.2d 711, cert. denied, 525 U.S. 1016, 119 S.Ct. 540, 142 L.Ed.2d 449 (1998); Hunt, 348 N.C. 192, 499 S.E.2d 747; (2) a state correction agency's liability for allegedly negligent placement or supervision of...